Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.” Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other. Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.” If a spouse dies, the surviving spouse may recover the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

There recently has been an extensive amount of media coverage and opinions about the deadly shooting of a teenager by the Ames Police Department after a vehicle pursuit. Some support the officer’s actions, others criticize him for various reasons. I’m not offering opinions on whether the officer’s actions were justified. Instead, I wanted to review the legal standards under federal civil rights laws that govern law enforcement use of deadly force. These are the general rules that are used when law enforcement agencies are sued for personal injuries or wrongful death stemming from the use of deadly force.

Well, maybe one opinion first. Commentators who criticize the officer’s actions frequently assert that the teenage suspect was unarmed. That’s wrong. The teenager was armed with a truck. He had used that truck as a battering ram/weapon during the police pursuit that ended with his shooting death by police. Now, whether or not he was trying to again use the truck as a weapon at the time the officer shot him is a subject for fair debate. But let’s stop pretending that the suspect wasn’t armed. I once had a police tactics/use of force expert point out in court that any of the tools, implements, and other objects found in a garage can be used as a weapon, including a can of beer. So the concept of an “armed” suspect extends well beyond guns and knives and easily includes motor vehicles.

Moving on to the general law concerning deadly force, apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. The Fourth Amendment prohibits officers from using deadly force to make an arrest unless the individual poses a threat of serious physical harm. When the suspect poses no immediate threat to the officer and no threat to others, deadly force is not justified. Notwithstanding probable cause to seize or arrest a suspect, an officer may not always do so by killing the person.

All claims that law enforcement officers have used excessive force, whether deadly or not, in the course of an arrest, investigatory stop, or other seizure are analyzed under the Fourth Amendment’s objective reasonableness standard. The key question is whether officers’ actions are objectively reasonable in light of the facts and circumstances confronting them. Officers’ underlying intent or motivation in using force is not a factor in the objective reasonableness inquiry.

The reasonableness of an officer’s use of force, including deadly force, is evaluated by looking at the totality of the circumstances. Relevant circumstances include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade by flight. If the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, when feasible, some warning has been given.

On June 15, 2012, in Vania Minor v. State of Iowa the Iowa Supreme Court issued a decision clarifying the law regarding social workers’ liability for improper DHS investigations and the like. Basically, the Iowa Supreme Court made it nearly impossible to do so. But that follows a general trend — It’s awfully difficult, sometimes impossible, to sue government workers for this, that, and the other thing. That makes sense when you think about it. People are always unhappy with the government. If every government worker was wide-open to liability for every decision that worker made, the government’s entire mechanism would grind to a halt.

One area of law that the court mentioned in its Minor decision was the potential civil rights liability of prosecutors for wrongful prosecutions against innocent people. In an earlier post I discussed law enforcement’s liability in such situations. It’s even more difficult to sue a prosecutor for a wrongful prosecution because prosecutors are generally completely immune from such claims.

For example, prosecutors are entitled to absolute immunity from civil liability when they perform functions “intimately associated with the judicial phase of the criminal process.” Thus, a prosecutor has absolute immunity in initiating a prosecution and in presenting the State’s case. Acts falling within this function include the preparing and filing of trial information and motions. Such acts also include decisions not to prosecute, decisions to defer prosecution, recommendations that criminal defendants pay court costs when prosecutions are dismissed or deferred, and for the training, supervision, and control of another prosecutor.

There are other areas though where prosecutors have some (albeit minimal) exposure to liability. Prosecutors do not have absolute immunity when they perform investigatory acts before probable cause to arrest arises because police traditionally perform this function. A few years ago a federal court of appeals allowed civil rights claims to proceed against a county attorney who was accused of obtaining, manufacturing, coercing and fabricating evidence before filing formal charges. Further, prosecutors do not have absolute immunity when they give advice to the police to aid them in obtaining a confession. Finally, absolute immunity does not shield a prosecutor who prepares and files a sworn affidavit to accompany a motion for an arrest warrant.

Sometimes people are arrested and charged with a crime even though they’re innocent. Innocence might be established because the charges are dropped. Occasionally innocence isn’t proved until a not guilty decision is achieved through a trial. But what legal rights do people have after being investigated for crimes they didn’t commit? Can law enforcement be held civilly liable for investigating the wrong person?

The answer is yes, in limited circumstances. You need to prove more than that the police were negligent in their investigation and mistakenly focused on the wrong person. Instead, you have to establish that the police acted “recklessly” or “intentionally” during the investigation to the point that it “shocks the conscience.” That higher standard of proof ensures that the police aren’t subject to a hindsight analysis every time someone’s charges are dismissed or there’s a trial acquittal.

This is an extremely fact-intensive analysis. Every police investigation is different, so the application of the “reckless or intentional” standard will vary widely from case to case. The focus will very much be on what other information was available to the police had they done a further investigation, what information was actually in the hands of the police (for example, did they ignore known evidence that pointed at a different culprit), and how long the police had to investigate (the longer the police have to investigate and deliberate, the harder it is for them to justify going after the wrong person).

In general, these cases are not successful when it’s nothing more than a matter of the police sifting through various pieces of evidence, some of which implicate the suspect, some of which did not, and then deciding to go with the “inculpatory” evidence against the suspect and make an arrest. In that situation, the competing evidence in favor of and against the suspect’s guilt is properly raised in criminal court, but the fact that the inculpatory evidence is later rejected in court does not automatically mean that the police are civilly liable for a wrongful investigation, assuming that they had some other evidence that the suspect was guilty. A successful case requires that the police ignore available and overwhelming evidence that they’re investigating the wrong person to the point that they violate the suspect’s due process rights by pushing the investigation.

If liability for a wrongful investigation is established, the officers and their law enforcement agency or municipality can be ordered to pay criminal defense attorney fees and expenses and damages for the civil rights violation. That can include emotional distress, which is impacted by factors such as whether it was a public criminal investigation covered by the media, whether the innocent person was incarcerated for any length of time, and how long the investigation continued before the person was cleared.

Law enforcement or jail officials sometimes use restraint devices to control prisoners. Restraint devices can include chairs and beds with straps to immobilize the prisoner. The use of a restraint device, if done improperly or for improper reasons, can cause personal injuries or wrongful death and lead to civil liability for the officials and facility.

Restraint devices can cause harm or death to the prisoner. But even when they restraint devices don’t lead to such serious results, civil liability can still be imposed for the physical pain or discomfort caused by the restraint device and the resulting mental fear of being held down.

Iowa law provides only three situations when four- and fivepoint restraints can be used: When the inmate is (1) a threat to self, (2) a threat to others, or (3) a jeopardy to security. Restraint devices are not proper when only minor damage to a cell has occurred, the inmate posed no other threat to jail staff other than verbal abuse, or when the immediate threat to safety or security had already passed. Iowa law states that restraints can only be used for the amount of time necessary to alleviate the condition causing the restraint.

Restraint devices must only be used when the inmate is an immediate and ongoing threat to themselves or others, or is jeopardizing jail security. Restraint devices cannot be used merely to punish a prisoner.

Iowa law requires 15-minute personal visual observation of the inmate and the restraint application. That should include an examination of the prisoner’s well-being but also the effect of the restraints on the prisoner.

If you have been subjected to a restraint device while jailed or imprisoned and believe that the use of the device was improper, please feel free to contact me to see whether you have a claim for a civil rights violation.

In this new era of protesters “occupying” public space all over cities and then getting arrested for various minor offenses, I though it’d be useful to discuss citizens’ rights to resist what they believe to be an unlawful arrest. That’s actually pretty easy — There is no such right. The idea that people have a right to “passively” or “peacefully” or, worse yet, physically resist law enforcement is a myth, at least in Iowa.

If a law enforcement officer tells you to do something, you have to do it, or else you’re committing a crime, no matter how much you believe that the officer lacks authority or is acting unlawfully. And Iowa Code 804.12 specifically criminalizes resistance to any arrest regardless of how unlawful you may think that arrest is: “A person is not authorized to use force to resist an arrest, either of the person’s self, or another which the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful or the arrest is in fact unlawful.”

A number of Iowa appellate court decisions have said basically the same thing. For example, in the 1997 decision in State v. Brecunier, the Iowa Supreme Court noted that the defendant “incorrectly believed the right to resist the police was reposed in him, when in fact the law gives the officer the right to make an arrest based on probable cause. . . .”

There are two primary reasons for this law. First, officers’ safety is a paramount consideration. People always think that their arrests are unfair or unlawful; if citizens then had a right to duke it out with law enforcement every time they held that belief then a lot of officers and citizens would be hurt. Second, the streets are not the time or place for a debate on the legality of an arrest or whether the arrestee has committed a crime. Those are matters to be determined in courtrooms by judges and juries.

Resisting an officer’s commands or attempt to arrest you can actually lead to legitimate criminal charges against you, even if the officer’s commands were unlawful or there initially was no probable cause to arrest you. Because disregarding law enforcement commands or resisting arrest are crimes under any circumstances, resistance to even an unlawful arrest gives police probable cause to arrest you for resisting arrest, which means you can resist yourself into a jail cell even if you otherwise would have gone free had you not resisted the original attempt to arrest you.

Sometimes personal injury or wrongful death claimants have a “preexisting condition.” That’s lawyer-speak that means you’ve been hurt before. The impact, if any, of that preexisting condition on your legal rights is analyzed under the related theories of “eggshell plaintiff” and “aggravation of injury.”

Simply put, if you’re seeking money for physical injuries, perhaps in a car accident, motorcycle crash, dog bite, or police brutality case, the eggshell theory is good and the aggravation concept is bad. Flip that statement if you’re defending a personal injury claim or happen to be an insurance company.

An eggshell plaintiff is someone who, because of an earlier injury, is more susceptible to re-injury of the same area of the body than a normal person would be. On the other hand, the aggravation theory applies if a person has an ongoing injury that is aggravated by a second injury-causing event, which then amplifies or aggravates the symptoms of the original, preexisitng injury.

The key distinction between the eggshell and aggravation theories is that an eggshell plaintiff has completely healed by the time of the injury-causing event while an aggravation plaintiff has not completely healed and instead has ongoing problems because of an existing injury. Under Iowa law, defendants take their victims as they get them, so if an “eggshell” plaintiff gets hurt worse than a normal person would have, that’s the defendant’s problem and the defendant has to deal with the greater damages exposure because of the misfortune of hurting someone who was more susceptible to injury.

Here’s an example of the two theories: Say you broke your arm as a child. It heals as best it can, but the bone is never as strong as it was before you broke it. Decades later you’re in a car crash and break the same arm, an injury that wouldn’t have happened to most folks but happened to you because of the break years earlier when you were a kid. That’s an eggshell plaintiff situation and the defendant is responsible for 100% of the injuries to your arm, even though many people who had not previously broken their arm would not have suffered a broken arm in the collision. Remember, defendants take their victims as they get them, and that includes earlier injuries that make a victim more susceptible to injury in the present day.

Conversely, if you’d broken that arm just two weeks before the car crash and the bones were still healing, but the fracture was worsened by the collision, that would be an aggravation situation and the defendant would only be liable for the amount of injuries and damages that occurred because of the aggravation of the injury during the crash. That is an aggravation, not eggshell, situation because you had not completely healed at the time of the collision.

You can see why the eggshell vs. aggravation distinction is heavily contested in cases that involve a plaintiff with an earlier injury. The plaintiff wants to prove the eggshell theory; the defendant needs to argue that it’s actually an aggravation of injury situation. This is frequently an issue that gets fought between competing medical experts.

Please feel free to contact me if you have a personal injury or products liability matter that you would like to discuss. I’ll be happy to see if I can give you a hand.